Case No. 2:14-cv-01762-TSZ

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 1 of 22
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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON
SEATTLE DIVISION
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MICHAEL LEAL,
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Plaintiff,
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vs.
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EVERETT PUBLIC SCHOOLS, GARY
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COHN, in his individual and official capacities )
as Superintendent of Everett Public School,
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CATHY WOODS, in her individual and
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official capacities as Principal of Cascade High )
School, LAURA PHILLIPS, in her individual )
and official capacities as Assistant Principal of )
Cascade High School, ROBERT AGUILAR, in )
his individual and official capacities as
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Assistant Principal of Cascade High School,
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and DOES 1 THRU 100,
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Defendants.
Case No.: 2:14-cv-01762-TSZ
PLAINTIFFS NOTICE OF MOTION AND

MOTION FOR TEMPORARY
RESTRAINING ORDER AND
PRELIMINARY INJUNCTION;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION FOR TEMPORARY
RESTRAINING ORDER AND
PRELIMINARY INJUNCTION
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MOTION & MEMO FOR TRO & PRELIMINARY INJUNCTION
PACIFIC JUSTICE INSTITUTE
Case No. 2:14-cv-01762-TSZ
P.O. Box 276600
Sacramento, CA 95827
(916) 857-6900
TABLE OF CONTENTS
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PACIFIC JUSTICE
INSTITUTE
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(916) 857-6900
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TABLE OF AUTHORITIES
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Cases
Barr v. Lefon, 538 F.3d 554 (6th Cir. 2008) ....................................................................... 7
Bd. of Educ. Of Westside Cmty. Sch. v. Mergens By and Through Mergens, 496 U.S. 226
(1990) ............................................................................................................................. 11
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) .................................................. 9
Butt v. State of Cal., 842 P.2d 1240 (Cal. 1992) ............................................................... 12
Cantwell v. Conn., 310 U.S. 296 (1943) ..................................................................... 4, 6, 8
Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir. 2000) .......................... 10
Dariano v. Morgan Hill Unified Sch. Dist., 767 F.3d 764 (9th Cir. 2014)......................... 7
Elrod v. Burns, 427 U.S. 347 (1976) ................................................................................ 12
Garnett v. Renton Sch. Dist. No. 403, 987 F.2d 641 (9th Cir. 1993) ................................ 11
Gathright v. City of Portland, Or, 439 F.3d 573 (9th Cir. 2006) ..................................... 11
Gilio v. Sch. Bd. of Hillsborough Cty., Fla., 905 F.Supp.2d 1262 (M.D. Fla. 2012) ....... 10
Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013) ......................................................... 7
Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) .................................................................. 9
Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993) .......... 13
Hills v. Scottsdale Unified Sch. Dist. No. 48., 329 F.3d 1044 (9th Cir. 2003) ................. 10
J.S. v. Holly Area Schs., 749 F.Supp.2d 614 (E.D. Mich. 2010) ...................................... 13
K.A. v. Pocono Mt. Sch. Dist., 710 F.3d 99 (3d Cir. 2013)..................................... 9, 13, 14
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PACIFIC JUSTICE
INSTITUTE
P.O. Box 276600
(916) 857-6900
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Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979 (9th Cir. 2003) ....................... 10
M.B. v. Liverpool Cent. Sch. Dist., 487 F.Supp.2d 117 (N.D.N.Y. 2007) .................... 9, 11
Morgan v. Swanson, 610 F.3d 877 (5th Cir. 2010)............................................................. 9
Morse v. Frederick, 551 U.S. 393 (2007) ........................................................................... 9
Murdock v. Commw. Of Pa., 319 U.S. 105 (1943) ............................................................. 6
Prigmore v. City of Redding, 150 Cal.Rptr.3d 647 (Ct. App. 2012) .................................. 6
Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832 (9th Cir.2001) 3
Sypniewski v. Warren Hills Reg. Bd. of Ed., 307 F.3d 243 (3d Cir. 2002) ......................... 8
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).......................... 4, 6, 7
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Watchtower Bible & Tract Socy v. Vill. Of Stratton, 536 U.S. 150 (2002) ....................... 4
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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ........................................... 3
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Wright v. Pulaski Cty. Special Sch. Dist., 803 F.Supp.2d 980 (E.D. Ark. 2011) ............... 9
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Regulations
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EPS Board Procedure 3222P .......................................................................................... 5, 6
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PACIFIC JUSTICE
INSTITUTE
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To DEFENDANTS and their attorneys of record:
You are hereby given notice that ON A DATE TO BE DETERMINED BY COURT
ORDER, before a JUDGE TO BE DETERMINED in courtroom TO BE DETERMINED by
court order of the United States District Court for the Western District of Washington, Seattle
Division, located at 700 Stewart street, Seattle, Washington 98101, Plaintiff MICHAEL LEAL
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will and hereby does move for a temporary restraining order and preliminary injunction against
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Defendants, EVERETT PUBLIC SCHOOLS, GARY COHN, in his official capacity as

Superintendent of Everett Public School, CATHY WOODS, in her official capacity as Principal
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of Cascade High School, LAURA PHILLIPS, in her official capacity as Assistant Principal of
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Cascade High School, and ROBERT AGUILAR, in his official capacity as Assistant Principal
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of Cascade High School.

This motion for temporary restraining order and preliminary injunction is made pursuant
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to Fed. R. Civ. P. 65, and on the grounds specified in this Notice of Motion and Motion, and
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Plaintiffs Memorandum in Support of Motion for Temporary Restraining Order and
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Preliminary Injunction, the documents filed in support thereof, the Verified Complaint, and such
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other and further evidence as may be presented to the Court at the time of the hearing.
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Pursuant to this notice, Plaintiff MICHAEL LEAL does hereby move for a temporary
restraining order and preliminary injunction to:
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(1) enjoin Defendants from enforcing Everett Public Schools Board Procedure 3222P.
In support thereof, Plaintiff present the following Memorandum in Support of Motion
for Temporary Restraining Order and Preliminary Injunction.
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INTRODUCTION & SUMMARY OF THE ARGUMENT
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This temporary restraining order is a facial challenge to a school rule that (1) prohibits
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students from distributing literature that has not been written by a student and that (2) restricts
distribution to before and after school at the schoolhouse gates. Plaintiff seeks this temporary
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restraining order to prevent further suspension and his expulsion from Cascade High School for
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the exercise of his free speech rights. He has already been suspended three times in the current
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school year and is in imminent danger of further suspension or expulsion. The District policies
and procedures being used to punish Leal are plainly unconstitutional in that they flatly
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contradict Supreme Court precedent.
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FACTUAL AND PROCEDURAL BACKGROUND
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To avoid redundancy, the pertinent facts set forth in the supporting Declaration of
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Michael Leal (Leal Decl.), submitted herewith, will be summarized here as briefly as possible.
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The Declaration and Verified Complaint include a number of additional facts that amplify,
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explain and provide documentary evidence for the central facts.
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Leal is a senior at Cascade High School who is an active practitioner of the Christian
faith. Leal Decl. 1-2. His faith practice includes sharing the gospel of Jesus Christ with those
he encounters. Leal Decl. 2. In the current 2014-15 school year, Leal has already been
suspended on three separate occasions for sharing his faith with other students, their parents,
and administrators. Leal was called into the Principals office on September 3, 2014, where he
was confronted with written material entitled How to Know God (Compl. Exh. A) that he had
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given to fellow students during the lunch break. Leal Decl. 6. This literature is not written by
Leal or any other student. Leal Decl. 13. School officials ordered Leal to cease distributing
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the booklet because they believed it was proselytizing and might offend and upset other
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students. Leal Decl. 6. On the evening of October 1, Leal attended an after-school bonfire
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and car-bashing event on campus. Leal Decl. 7. When he began to hand out religious
literature and preach to other attendees, school officials ordered him to stop, calling the police
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and Leals parents. Id. Leal eventually complied with the demand and left the event with his
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parents. The next day, Leal was again summoned to the office by Assistant Principal Aguilar
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and suspended for two days based on the bonfire incident. Leal Dec. 8.
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On October 8, Leal was on campus after school when an open house and volleyball
game were taking place. Leal Decl. 9. He was distributing religious literature to parents and
students when Principal Woods ordered him to stop, claiming she would be breaking the law
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if she allowed him to continue. Id. Leal voluntarily left campus but declined her demands that
he agree to cease his leafleting activities. Id. The next day, after Leal gave religious literature
to fellow students during the lunch break, he was again summoned to Mr. Aguilars office and
suspended for three days. Leal Decl. 10. Mr. Aguilar warned Leal that he would face
expulsion if he continued to distribute literature. Id. On Halloween, October 31, Leal handed a
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piece of religious literature to a girl who was sitting next to him in math class, while no
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instruction was taking place. Leal Decl. 14. Although the teacher did not appear to notice and
said nothing at the time, prior to his next class, Leal was escorted by security to Mr. Aguilars
office where he was suspended for five days, based on the literature.
In written correspondence and notices of disciplinary action, the school, district and their
counsel have maintained that Leal is being punished pursuant to EPS procedural rules that limit
student literature distribution to works authored by students,, handed out before or after school,
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and even then only at school entrances and exits. Leal Decl. 11-13.
Based on the disciplinary actions taken and threats of further action, Leal fears he will be
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further suspended or even expelled from Cascade High School unless he surrenders his First
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Amendment rights to communicate his religious beliefs to other students. This action was
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initiated November 17, 2014, to halt the progressive loss of freedom that Leal is experiencing,
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and the imminent threat of expulsion.
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LEGAL ARGUMENT
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I.
The standard for a temporary restraining order under FRCP 65 is the same as for a
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Standard of review.
preliminary injunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d
832, 839 n. 7 (9th Cir.2001). The standard for granting a preliminary injunction is set forth in
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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20-22 (2008). Under Winter, a
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preliminary injunction should be granted upon a clear showing by the plaintiff that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
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public interest.
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II.
Plaintiff is likely to succeed on the merits of the speech claims because EPS has
suppressed student literature distribution to an extraordinary and unconstitutional
degree.
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A.
EPS speech restrictions are flatly inconsistent with the First Amendment.
In this motion for TRO, Leal narrowly focuses on two aspects of EPS policy that leap off
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the page in their defiance of Supreme Court jurisprudence: (1) the restriction of student
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literature to the schools entrances and exits before and after school, and (2) the requirement that
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Leals literature be written by himself or another student. On their face, such restrictions are
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unconstitutional.
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It is axiomatic that students do not shed their constitutional rights at the schoolhouse
gates. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). For more than 70
years, distribution of literature and other means of conveying ones religious, political and
philosophical views have been deemed fundamental aspects of the First Amendment as applied
to state and local governments. Cantwell v. Conn., 310 U.S. 296 (1943) (door-to-door
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solicitation of religious materials and public playing of phonograph on religious themes). The
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dissemination of such views or literature cannot be suppressed by local officials through prior
restraints, even when permission is freely granted and officials merely assert a need to know
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who is distributing literature within their jurisdiction. Watchtower Bible & Tract Socy v. Vill.
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Of Stratton, 536 U.S. 150 (2002).
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Notwithstanding these bedrock principles, the school officials in this case mistakenly
believe that the school context gives them sweeping powers to restrict the distribution and
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content of Leals speech, even when it takes place outside non-instructional time.
First, EPS, acting as though Tinker did not exist, has suspended and is on the verge of
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expelling Leal under school rules that do exactly what Tinker forbidsstopping student speech
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at the schoolhouse gate. Board Procedure 3222P, which has been cited by Defendants and their
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counsel as a basis for the disciplinary action against Leal, reads:
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Distribution of Materials
Distribution of materials written and/or produced by students shall not cause a
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substantial disruption of school activities or materially interfere with school

operations. Students responsible for distribution of materials will be subject to
corrective action or punishment including suspension or expulsion, depending on
the nature of the disruption or interference resulting from distribution of
materials.
The following guidelines are in effect in each school building:
A. Materials written and/or produced by students may be distributed before or
after the school day at points of entry/exit of school buildings.
B. Students may also seek permission from the school principal or assistant
principal to distribute materials written and/or produced by students at other
times and locations.
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In short, the only place where students may share written material without seeking the arbitrary
and standardless permission of the principal, is before and after school at the schoolhouse gate.
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It is astonishing enough that such a policy was ever enacted by EPS, but even more so that it
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continues to be invoked and enforced. Lest there be any doubt, District counsel reiterated the
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prohibition: Mr. Leal may distribute written material that he or other students wrote and
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published before and after school at the building entrances and exits. The letter continues,
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Mr. Leal may not, however, continue to distribute non-student material, nor may he continue to
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distribute any material at times and places other than before and after school at the building
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entrances and exits. Compl. Exh. D, p. 6.
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This restriction is fundamentally and facially incompatible with the basic principle that
students constitutional rights do not end at the schoolhouse gate, and Leal is highly likely to
succeed in obtaining permanent injunctive relief against its enforcement. In the meantime, it is
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imperative that enforcement of this Board Policy be halted so that Leal will not be expelled and
suffer the irretrievable loss of instructional time during his final year as a senior at Cascade
High School.
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The second plainly unconstitutional aspect of EPS Board Policy being used against Leal
is its startling restriction of written material to that which is personally authored by Leal or his
fellow students. Board Procedure 3222P, set forth above, restricts literature to materials
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written and/or produced by students. Nowhere does Tinker or its progeny ever suggest that
such a restriction is permissible. If anything, Tinker indicates that even greater protections
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apply to printed pamphlets than to the symbolic clothing at the center of that case. In this
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regard, Tinker reasoned that First Amendment protections for student speech unquestionably
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applied to the four corners of a pamphlet and extended beyond to include anti-war armbands.
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Tinker, 393 U.S. at 513. Here, EPS has taken nearly the opposite approach, placing fewer
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restrictions on expressive clothing than on pamphlets. There is no comparable requirement that
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messages on student clothing be handmade; indeed, such a requirement would be both silly and
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highly susceptible to challenge. Indeed, the Supreme Courts long history of literature
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distribution cases assumes that such literature is often created by a third party. See, e.g.,
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Cantwell v. Conn., 310 U.S. 296 (1943); Murdock v. Commw. Of Pa., 319 U.S. 105 (1943).
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The absurdity of the rules is further demonstrated by the fact that, on their face, they would not
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permit Leal to offer classmates a copy of the Constitution. Cf., Prigmore v. City of Redding,
150 Cal.Rptr.3d 647 (Ct. App. 2012) (striking down librarys restriction on distribution of the
Constitution and civic materials). Indeed, it can hardly be argued that distribution of literature
created by otherssuch as revolutionaries disseminating copies of Thomas Paines Common
Sense, are at the heart of the First Amendment. EPS limitation of literature distribution to
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student-written work is nonsensical, inexplicable, and unenforceable. It should therefore be
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restrained and enjoined before it can be used again to punish Leal.

B.
The restricted speech did not come close to causing a substantial disruption.
In Tinker, the Supreme Court strongly rebuked that schools attempts to curb dissent.
Instead, the Court limited restrictions on student speech to those instances where the speech
created a substantial disruption. The Court made clear that it was setting a high bar that would
not permit mere hostility, disagreement or even argument to be classified as a substantial
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disruption. In fact, the Court noted that other students had expressed hostility toward plaintiffs
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expression, but the Court did not regard this type of reaction as a substantial disruption.
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Indeed, invoking its Hecklers veto decisions, such as Terminiello v. Chicago, the Court
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indicated that substantial disruptions are those that emanate from the speech itself, not
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reactions to it by other students. Tinker, 393 U.S. at 508-09. Here, restrictions have been
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imposed on Leal, and discipline justified, based on the mere supposition by administrators that
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tracts like How to Know God might offend other students. This approach is exactly the
opposite of what Tinker commands.
Applying the substantial disruption standard, the lower courts have considered, for
instance, the likelihood of a riot, based on a schools prior experience. Typical flashpoints have
revolved around flags and expressive clothing. See, e.g., Dariano v. Morgan Hill Unified Sch.
Dist., 767 F.3d 764 (9th Cir. 2014) (upholding school officials restriction on display of the
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American flag during Cinco de Mayo where violence had been threatened); Barr v. Lefon, 538
F.3d 554 (6th Cir. 2008) (upholding schools ban on clothing bearing Confederate flag);
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Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013). Even in highly-charged situations like
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racial tension, though, the federal appellate courts have not given schools a free hand to declare
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expression to be a substantial disruption. Sypniewski v. Warren Hills Reg. Bd. of Ed., 307 F.3d
243 (3d Cir. 2002) (school could ban racially provocative speech, but failed to show that shirt
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with redneck jokes would cause substantial disruption).

In the present case, school authorities cannot come close to showing that Leal providing
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innocuous tracts to fellow students caused or was likely to cause a substantial disruption.
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Indeed, the cause of Leals most recent, 5-day suspensionhanding a tract to the student sitting
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next to himprompted no negative reaction at the time from either the student or the teacher.
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Under Tinker and its progeny, it is doubtful whether fellow students reaction to a tract entitled,
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How to Know God, could ever be deemed a substantial disruption. Cf., Cantwell, 310 U.S. at
309-10 (reaction and threats by listeners who were highly offended by plaintiffs playing of
phonograph denouncing Catholic Church did not justify First Amendment restrictions). Since
administrators cannot justify their restriction as preventing substantial disruption, Leal is highly
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likely to succeed under Tinker.

C.
No reasonable person would have believed Leals speech to be schoolsponsored, and it cannot be restricted on that basis.
In the decades since Tinker, the Supreme Court and the lower courts have permitted
some speech restrictions in circumstances not involving a substantial disruption, when the
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context is a school-sponsored program or activity. In Hazelwood v. Kuhlmeier, the Court
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permitted censorship in the context of a student newspaper, which was directly related to
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curricular activities and remained under the supervision of faculty and administration.
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Hazelwood v. Kuhlmeier, 484 U.S. 260, 273 (1988). In Bethel Sch. Dist. v. Fraser, the Court
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noted that school officials retained the necessary authority to curtail student speech at a school
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assembly, and in the context of a student election, that was vulgar. Bethel Sch. Dist. No. 403 v.
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Fraser, 478 U.S. 675, 683 (1986). And in Morse v. Frederick, the Supreme Court sanctioned
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school suppression of student speech at a school wide event when the student was arguably
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promoting a pro-drug message. Morse v. Frederick, 551 U.S. 393 (2007). The Morse majority
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took pains to stress that the Court was not allowing censorship on the basis that the message was
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offensive, and the Justices specifically recognized continued protections for student religious
and political speech. Id. at 409.
In light of the few contexts in which suppression of student speech has been permitted, it
comes as no surprise that the overwhelming majority of the lower federal courts have issued
injunctions and granted summary judgment to students in circumstances very similar to the
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present. In Morgan v. Swanson, the Fifth Circuit rebuked suppression of student religious
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speech during non-instructional time. Morgan v. Swanson, 610 F.3d 877 (5th Cir. 2010). In
K.A. v. Pocono Mt. Sch. Dist., the Third Circuit sided with a student who had been barred from
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distributing invitations to classmates for a church Christmas party. K.A. v. Pocono Mt. Sch.
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Dist., 710 F.3d 99 (3d Cir. 2013).
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The federal trial courts have also strongly denounced attempts by school officials to
restrict the distribution of invitations, church-related flyers and other religious literature between
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students. Wright v. Pulaski Cty. Special Sch. Dist., 803 F.Supp.2d 980 (E.D. Ark. 2011); M.B.
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v. Liverpool Cent. Sch. Dist., 487 F.Supp.2d 117 (N.D.N.Y. 2007) (Halloween-themed and other
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religious tracts, as well as students written personal statement of belief); Gilio v. Sch. Bd. of
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Hillsborough Cty., Fla., 905 F.Supp.2d 1262 (M.D. Fla. 2012).
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Because there is no realistic possibility that EPS could justify its restrictions under the
notion that Leals literature distribution is school-sponsored or bears the imprimatur of the
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school, he is likely to prevail on this aspect of his First Amendment claim as well.
D.
Proselytizing student speech is no less protected in the school context.
Based on statements made by school officials to Leal when taking disciplinary action
against him, EPS apparently believes it can impose unique burdens on student speech that it
deems proselytizing. In this regard, when Leal was summoned to the principals office and
confronted with the How to Know God tract, it was alleged to be impermissible because it
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could offend other students (a notion already debunked above), and because it was
proselytizing. EPS appears to be confusing and conflating student speech in a non-coercive
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environment with speech in other, distinct contexts where there may be legitimate attribution of
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speech to the school. For instance, the Ninth Circuit has approved limits on student religious
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speech at school-sponsored, obligatory events like graduations. See, e.g., Lassonde v.

Pleasanton Unified Sch. Dist., 320 F.3d 979 (9th Cir. 2003); Cole v. Oroville Union High Sch.
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Dist., 228 F.3d 1092 (9th Cir. 2000). The Ninth Circuit has also permitted censorship of
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proselytizing speech in flyers from outside organizations that are distributed or made available
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by the school. Hills v. Scottsdale Unified Sch. Dist. No. 48., 329 F.3d 1044, 1053 (9th Cir.
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2003). What neither the Ninth Circuit nor the Supreme Court have done is approve restrictions
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of proselytizing student speech in contexts where, as here, there can be no reasonable
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perception of school sponsorship.
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Indeed, there is a crucial difference between government speech endorsing religion,
which the Establishment Clause forbids, and private speech endorsing religion, which the Free
Speech and Free Exercise Clauses protect. Bd. of Educ. Of Westside Cmty. Sch. v. Mergens By
and Through Mergens, 496 U.S. 226 (1990). In Prince v. Jacoby, the Ninth Circuit drove home
this point by ruling that the school must make available to a student religious club the same
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access to school supplies, announcements, and even funding that were made available to other
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student groups. Prince v. Jacoby, 303 F.3d 1074, 1085-90 (9th Cir. 2002). The court held that
it did not matter whether the religious club advocated its religious views vociferously the
10
First Amendment required neutrality. Id. at 1093. Earlier, the Ninth Circuit rejected arguments
11
of a similar ilk that strict separationist provisions in the Washington Constitution required a
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school district to treat religious speech less favorably than other speech. Garnett v. Renton Sch.
Dist. No. 403, 987 F.2d 641 (9th Cir. 1993). Whatever form they take, knee-jerk arguments by
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school districts that private student speech, clearly disconnected from any school sponsorship, is
16
somehow less protected, finds no refuge in the jurisprudence of the Supreme Court or this
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Circuit. Cf., Gathright v. City of Portland, Or, 439 F.3d 573 (9th Cir. 2006) (ruling in favor of
18
preacher who had been excluded from park during privately-sponsored event, reasoning that
19
preachers message was clearly not part of organizers message); M.B. v. Liverpool 487
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_____________________________________________________________________
P.O. Box 276600
(916) 857-6900
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F.Supp.2d at 136 (holding it was not reasonable for other parents to misperceive school
sponsorship from religious materials given by one student to another).
3
4
III.
Plaintiff will suffer irreparable harm if an injunction is not granted.

The loss of constitutional freedoms, for even minimal periods of time, causes irreparable
5
6
harm. Elrod v. Burns, 427 U.S. 347, 373 (1976). Here, the loss of freedom is ongoing and
threatens to engulf the entire school year, and beyond, if a TRO is not swiftly granted. With
each passing day, it is reiterated to Leal that his religious expression is subject to official review
and punishment. It is therefore a matter of some urgency that the official restrictions be lifted,
10
lest more educational and evangelistic opportunities be lost and he learn the lesson at an early
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age that his religious expression can and will be suppressed by his government. See also, Butt v.
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State of Cal., 842 P.2d 1240 (Cal. 1992) (finding irreparable harm to students where school
14
closures threatened their fundamental rights to an education).
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IV.
The balance of hardships tips sharply in favor of the student.

Where suspensions hang ominously over a student, the balance of hardships tips in his
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favor. Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F.Supp.2d 98, 128 (D.Mass.
20
2003) (granting preliminary injunction to students whose religious literature distribution had
21
been restricted). Conversely, the school has no pedagogical interest in restricting private student
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P.O. Box 276600
(916) 857-6900
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speech, and indeed there is educational value in such speech. Id. Certainly, compliance with
the Constitution is not a hardship. Id. The only real hardship that school officials may endure if
students are allowed to exercise their constitutionally-protected religious expression is fielding
inquiries from students or parents who may not fully appreciate Tinkers insistence on tolerance
toward the expression of viewpoints that may be controversial or cause a reaction. The hardship
6
that will be endured by the student if an injunction does not issue is the continuing loss of First
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8
9
Amendment freedoms. The relative weight of these hardships is not close; the scales of justice
tilt heavily toward Leal. As the Seventh Circuit put it in Hedges, the schools obligation is to
10
educate those with misperceptions, not to squelch the speaker. Hedges v. Wauconda Cmty. Unit
11
Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir. 1993).
12
13
In K.A. v. Pocono, the school district claimed that if the preliminary injunction was
granted, it would be required to maintain an open forum and that non-school organizations
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15
would use children to evade the district review and approval policy. K.A. v. Pocono Mt. Sch.
16
Dist., 710 F.3d at 113. However, the 3rd Circuit could not see how any harm would result to the
17
school district, reasoning that the school could still regulate the distribution of material under
18
the Tinker standard if the distribution was disruptive or interfered with the rights of other
19
students. Id. at 113-14. In this case the District will also not suffer any harm by granting the
20
TRO. The District is not being forced to maintain an open forum or to allow non-school
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P.O. Box 276600
(916) 857-6900
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organizations a loophole in to being able to disrupt the school environment. The District is still
able to maintain its control over the learning environment, it is just being precluded from
controlling the content of free expression that is not disruptive and is during non-instructional
time.
5
6
V.
An injunction is in the public interest.

It is always in the public interest to prevent the violation of a partys constitutional
7
8
rights. J.S. v. Holly Area Schs., 749 F.Supp.2d 614, 629 (E.D. Mich. 2010) (enjoining
restrictions on student-to-student literature distribution). Denial of a TRO would deal a setback
10
to the educational value of Tinker by giving the public the false impression that it is permissible
11
for school officials to sharply restrict student speech. Such a result would be detrimental indeed
12
13
to the public interest. Enforcing an unconstitutional law vindicates no public interest. K.A. v.
Pocono Mt. Sch. Dist., 710 F.3d at 114.
14
15
16
CONCLUSION
BP 3222Ps requirements that (1) written materials be drafted by students and (2) that
17
distribution take place before and after school at the schoolhouse gates are facially
18
unconstitutional. More than 45 years after Tinker, some of its lessons remain unlearned, and
19
school officials persist in stifling student speech for no other reason than to avoid the discomfort
20
that accompanies the expression of unpopular views. It is essential that this Court not only
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P.O. Box 276600
(916) 857-6900
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intervene to halt the ongoing censorship of Leals expression, but also to remind school officials
that students are not closed-circuit recipients of messages that must first pass through, and be
controlled by, school administrators. For all of the foregoing reasons, Leal is likely to succeed
on the merits, is suffering and will suffer irreparable harm, is heavily favored by the balance of
hardships, and is advancing the public interest. A temporary restraining order should therefore
6
be granted.
7
8
Dated: November 21, 2014

_s/ Conrad Reynoldson___________
Conrad Reynoldson
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Conrad Reynoldson, WA SBN 48187

4421 51st Ave, NE
Seattle WA, 98105-4932
Tel.: (425) 246-8868
E-mail: conrad3445@gmail.com
Kevin T. Snider, CA SBN 170988*
Matthew B. McReynolds CA SBN 234797*
P.O. Box 276600
Tel.: (916) 857-6900
Fax: (916) 857-6902
E-mail: ksnider@pji.org
*pro hac vice
Attorneys for Plaintiff
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_____________________________________________________________________
P.O. Box 276600
(916) 857-6900
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Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT

Case No.: 2:14-cv-01762-TSZ

PLAINTIFFS NOTICE OF MOTION AND

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 2 of 22

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 3 of 22

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 4 of 22

Morgan v. Swanson, 610 F.3d 877 (5th Cir. 2010)............................................................. 9

Morse v. Frederick, 551 U.S. 393 (2007) ........................................................................... 9

Murdock v. Commw. Of Pa., 319 U.S. 105 (1943) ............................................................. 6

EPS Board Procedure 3222P .......................................................................................... 5, 6

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 5 of 22

To DEFENDANTS and their attorneys of record:

You are hereby given notice that ON A DATE TO BE DETERMINED BY COURT

ORDER, before a JUDGE TO BE DETERMINED in courtroom TO BE DETERMINED by

Defendants, EVERETT PUBLIC SCHOOLS, GARY COHN, in his official capacity as

of Cascade High School.

Plaintiffs Memorandum in Support of Motion for Temporary Restraining Order and

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 6 of 22

INTRODUCTION & SUMMARY OF THE ARGUMENT

contradict Supreme Court precedent.

FACTUAL AND PROCEDURAL BACKGROUND

explain and provide documentary evidence for the central facts.

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 7 of 22

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 8 of 22

and the imminent threat of expulsion.

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 9 of 22

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 10 of 22

Of Stratton, 536 U.S. 150 (2002).

counsel as a basis for the disciplinary action against Leal, reads:

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 11 of 22

substantial disruption of school activities or materially interfere with school

entrances and exits. Compl. Exh. D, p. 6.

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 12 of 22

restrictions on expressive clothing than on pamphlets. There is no comparable requirement that

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 13 of 22

created by otherssuch as revolutionaries disseminating copies of Thomas Paines Common

restrained and enjoined before it can be used again to punish Leal.

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 14 of 22

with redneck jokes would cause substantial disruption).

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 15 of 22

likely to succeed under Tinker.

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 16 of 22

Dist., 710 F.3d 99 (3d Cir. 2013).

Hillsborough Cty., Fla., 905 F.Supp.2d 1262 (M.D. Fla. 2012).

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 17 of 22

Proselytizing student speech is no less protected in the school context.

speech at school-sponsored, obligatory events like graduations. See, e.g., Lassonde v.

of proselytizing student speech in contexts where, as here, there can be no reasonable

perception of school sponsorship.

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 18 of 22

Indeed, there is a crucial difference between government speech endorsing religion,

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 19 of 22

Plaintiff will suffer irreparable harm if an injunction is not granted.

closures threatened their fundamental rights to an education).

The balance of hardships tips sharply in favor of the student.

Case 2:14-cv-01762-TSZ Document 8 Filed 11/21/14 Page 20 of 22